The Court of Seville lowers the prison sentence for a convicted person for attempted rape by the "only yes is yes" law

SEVILLA, 1 Feb. (EUROPA PRESS) -

The Court of Seville has reduced from eight years to six years, eight months and three days, the prison sentence imposed on a man for the crime of attempted sexual assault on a minor under 16 years of age, with the aggravating circumstance of recidivism, thanks to Organic Law 10/2022 on the comprehensive guarantee of sexual freedom, after which there are at least 259 revisions of lower sentences and subsequent sentences from which the defendants have benefited, given the unification of the crimes of abuse and assault in a single type and the maxim that in the event of a collision between two penal norms of different temporary validity, the most favorable sentence for the accused must be applied.

In a sentence issued on January 23 and collected by Europa Press, the Third Section of the Seville Court addresses a request for a review of the sentence requested by a man convicted by said instance for a crime of sexual assault on a minor under 16 years of age in degree of attempt, with the aggravating circumstance of recidivism.

Specifically, the Third Section of the Hearing imposed nine years in prison, 14 years of removal from the victim, ten years of probation once the prison sentence has been served, civil liability and the costs of the legal proceedings.

However, after appealing his defense in cassation before the Supreme Court, said instance reduced his prison sentence to eight years, appreciating an analogous mitigation of mental anomaly, beginning to serve the sentence in September 2021.

"As a consequence of the entry into force of the reform of the Penal Code introduced by the Law on the Comprehensive Guarantee of Sexual Freedom, and in case the review of the sentence imposed under Article 2.2 of the Penal Code proceeds, an ex officio transfer was granted to the parties appearing", the sentence details, adding that after not alleging anything by the defendant's defense, in December 2022 "it was ordered to hear the prisoner personally in order for him to state on this point what was appropriate to his right", situation and the which the defendant requested "the review of the sentence, without alleging any other particular".

The Court recalls that article 2.2 of the Criminal Code "establishes, unconditionally, that those criminal laws that favor the accused will have retroactive effect, even if a final sentence had been handed down when they entered into force and the subject was serving a sentence."

"In the present case, the defendant was sentenced for an offense under article 183.1 and 3 of the Penal Code in its previous wording to eight years in prison. The general penalty range was 12 to 15 years in prison and the range applicable to In this case, by lowering a single degree for the attempt, it was from six to 12 years minus one day. Eight years were imposed. Such a penalty is included in the first third of the applicable band that goes from six to eight years, and is his higher point After Organic Law 10/2022, the same crime is punishable by ten to 15 years in prison in the current article 181.1 and 3. Since the applicable band is the lower degree resulting from the attempt, the band The applicable penalty is between five years and ten years minus one day in prison," the sentence explains.

It then states that "the upper point of the first third of the sentence, which is where the original sentence was imposed, is now not eight years, but six years, eight months, and three days in prison, and the sentence must remain of that magnitude." imposed on the defendant by application of article 2.2 of the Penal Code and following the criterion of the final judgment of imposing the sentence at the maximum point of the first third of the legal range of the sentences established in the type".

"Correlatively, by agreeing on a sentence of removal and solitary confinement of five years greater than the imprisonment sentence imposed, that is, 13 years, it must be reduced, by application of the same precepts and maintaining the additional five years, to that of eleven years, eight months and three days", since "probation is not affected, which is not a sentence", the sentence indicates.

Given the case, the Third Section of the Court of Seville agrees to review the sentence, "reducing the custodial sentence to six years, eight months and three days and also the penalty of prohibition of approach and communication with the victim to eleven years , eight months and three days".